This is a transcript of Heather Harvey’s talk at the What’s wrong with surrogacy? webinar on 6 September 2020.
First, I have to state our position which, is uncompromising. There is no human right to have and rear a child at all, let alone to have one with a genetic connection to you. And, notwithstanding our sympathy for those who desperately want, and are unable to have, a child of their own, our position opposes both the proposals in the consultation and the whole concept of surrogacy. This position arises from the belief that surrogacy is incompatible with women’s rights and equality.
Nia is a women-only, rights-based and secular charity, established in 1975, working on all forms of violence against women and girls. We support around 2,000 women and girls a year. Our services include specialist support for women who have been sexually exploited for instance through: prostitution, pornography, grooming, trafficking and the sex industry as well as through rape and sexual assault.
We also find, increasingly, that we are supporting women who experience multiple disadvantage. This may include mental health problems and problematic substance use – often as a coping mechanism for the trauma of (men’s) violence experienced. It may also include combinations of prostitution, racism, poverty and destitution, homelessness, ex-offending and insecure immigration status – again all of which often relate to, or intersect with, histories of violence they have suffered.
It is in this context of inequality and discrimination and equally in the current climate of economic insecurity and inequality, that we felt the need to engage with the consultation about surrogacy.
The current context
The current, relevant legislation is the Surrogacy Arrangements Act (SAA) 1985 and the Human Fertilisation and Embryology Act (HFEA) 2008. Currently, in the UK, “Commercial surrogacy” is not legal but should someone “altruistically” bear your child, it is legal to provide “reasonable expenses” and/or “gifts” to compensate or thank them. This is evidently vague and open to interpretation. What are reasonable expenses and gifts, when do they become payments or inducements? What is informed consent when financial need is in question? Who decides?
This current status quo was established in 1985 following the Warnock inquiry in 1984. The position arrived at reflects substantial discomfort with the practice of surrogacy and very real concerns that it constitutes a breach of international human rights standards and certainly would do were any sort of financial transaction or contract to be involved.
This is just one of many ways in which surrogacy bears similarities to prostitution. In the face of widespread discomfort with the whole practice, we seek to accommodate it and try to minimise the harm it causes rather than aspire to build a society without it. Yet, there are no laws which can regulate away the inherent harm of the industry and practice.
The Law Commission consultation on possible reforms of surrogacy law
Other contributors will talk about the consultation in more detail, suffice it to say that the panel positioned the current status quo as the result of some sort of misguided and unevidenced “moral panic” of a handful of feminists at the time. They argued these concerns were largely unfounded and had now dissipated and that anyway a more regulated surrogacy industry would drive up standards and minimise or eliminate any such concerns. Again, as with prostitution, this is to assume that a harm minimisation approach and a more regulated industry would make a fundamentally unsafe and unequal practice somehow better. Before going much further, however, I would first like to look at some of the language used in this consultation.
The impact of language
Again, as with prostitution, we see language being selected depending on your perspective on the issue. With prostitution it is sex worker v woman exploited in prostitution, it is manager or agent v. pimp, it is harm minimisation v. prevention, exit and abolition and so on. It is similar with surrogacy:
|Term used by surrogacy proponents||Term used by those expressing doubts about surrogacy||Other notes or explanations|
|The surrogate, gestational carrier or host||The mother or birth mother or surrogate mother||Choice reflects amount of weight to be accorded to the visibility, personhood and maternity of the woman carrying the pregnancy and giving birth|
|The intended parents||The commissioners||Choice reflects perception of the arrangement as an act facilitating others’ parenthood or a sub-contracted service or commission.|
|Negotiation, matching, facilitation and advice||The surrogacy industry: i.e. surrogacy clinics, advertising, marketing, brokers, lawyers involved in the process||Choice reflects the extent to which the process is viewed as a business/set of business interests or a support service|
Why nia engaged
Nia felt that the proposals could facilitate abuse, inequality and harm to women, we saw parallels with prostitution and so we felt we needed to respond. This was despite the fact that the consultation was not framed as a discussion about the issue of surrogacy but as a discussion on the best way to do more surrogacy better.
What are we talking about when we say surrogacy?
The most well-known or “traditional” form of surrogacy is where a woman is artificially inseminated with sperm of the man who will be the father. Thus the woman is the natural, biological birth mother both genetically and in terms of carrying the pregnancy and birth to term. The surrogacy industry does not advise or promote this method.
The increasingly common method, preferred and promoted by the surrogacy industry, is where both egg and sperm are donated and then implanted in the womb of the surrogate mother. In such a case there may be no genetic link between the woman and the child she is carrying though bonds may develop due to the pregnancy.
Entering into it
The relatively more benign image of surrogacy is of a woman who chooses to help a couple have a child of their own and gains satisfaction from providing such a gift receiving nothing additional or only expenses and a gift in return.
There are those who argue that such a “service” should be paid for or compensated. It is the “choice” of the woman to use her body as she wishes [or needs] but she should not be the only party who draws no benefit from such an arrangement and this may be the only way in which a woman can make money.
It is already the case, and widely acknowledged even within the surrogacy industry, that surrogacy commissioners are generally well-off and that women acting as surrogates generally are substantially less well-off and less endowed with status. Indeed, this very disparity of wealth is often cited as one of the “social values” of surrogacy as it provides a route to finances for poorer women.
Ensuring women have the “agency, choice and autonomy” to “choose” to sell themselves in prostitution or in pregnancy and childbirth does not seem to me at all compelling. Far more compelling is the obligation on all of us and on the state to ensure that all women and girls have equal opportunities in education, employment, freedom of movement, financial independence and freedom from violence such that they are not confronted with this “choice”.
US based Professor Anita Allen, who has written a series of articles about surrogacy, addresses this when she highlights that casting surrogacy as an “option or opportunity” for women ignores that what may be an option or an opportunity for wealthy women, who, funnily enough, choose not to avail themselves of it, often assumes the guise of an imperative for poorer women. She says, and I agree with her, that we should be “wary of creating new dead-end ‘jobs’ for women.” Millions of women have already been shunted off into low pay, low esteem “female” jobs.”
How may a woman go about entering a surrogacy arrangement?
There is ample research, not least the recent report by Philip Alston, UN special Rapporteur on extreme poverty and human rights, that has demonstrated growing wealth inequality in the UK.
Women continue to suffer from unequal income at all stages of their lives. Cuts in the public sector also disproportionately impact on women both in terms of services they use and in terms of flexible employment options for women and where jobs are being lost. Women may then be forced into contract and private sector work which is zero-hour, low-status, insecure and low-paid, needing either, multiple jobs and long, unworkable hours to make up the minimum, or needing topped up somehow. All of which factors are visible, and indeed exacerbated, among women who are young, BME, migrant, disabled or poorly qualified.
Currently you can go on the internet and look up how to be a surrogate and how much can I be paid. The law commission proposals discuss allowing surrogacy clinics to proactively advertise for business. It also is clearly driving toward paid or commercial surrogacy in the long run though it recognises there is little appetite for this given the experience of many other countries which have started to backpedal, but of course, once the genie is out of the bottle it is hard to put it back in.
Obviously young women, particularly those needing to make money fast or urgently, are the key target for both the sex industry and for the reproduction industry – whether this is traditional or gestational surrogacy, egg donors, escorts and prostitution and versions thereof such as “sugar daddy” arrangements. The law commission proposals also suggest setting the age limit for surrogacy at 18 and not imposing any caps on the number of surrogacies a woman may undertake.
Women at US universities and on social media in the US are already targeted with ads to make money as egg donors or in “sugar daddy” arrangements. Informal ads in the UK for flat-shares already advertise to pretty, young, “open-minded” women to have reduced or rent-free arrangements in exchange for domestic and other services. We already have reports of land-lords and loan-sharks offering reductions to women if they will provide sexual services to them or their friends or threatening women with eviction and debt recovery should they refuse.
It has been a successful strategy of the sex industry to normalise many of its practices, present them as exciting, positive, lucrative, a matter of choice and part of the mainstream. Consequently, it makes sense for them to market surrogacy similarly. The more normalised this is, the greater the risk that women may think it a viable option.
I am not suggesting that young women are incapable of making a thought-through, free and informed decision. But I am highlighting that the decision is often less informed and less free than it is portrayed. This may be having little or no knowledge of the health-related risks and stresses of being a surrogate, or of the way one may feel during nine months of pregnancy and after giving birth.
For those experiencing extreme financial hardship casting around for ways to make money fast or for those in abusive and controlling relationships whose partner sees your body as his income generating scheme, you would have to interrogate that “free and informed consent.”
Bizarrely, proponents of the surrogacy industry attempt to argue that the more there is an organised surrogacy industry, the more they can do it safely and reduce abuse and disagreements. It is noticeable that the law commission panel acknowledges high rates of breakdown, dispute and change of mind in “traditional” and “independently arranged” surrogacy. Those surrogacies done through clinics, agents and the industry, they say, have lower changes of mind and dispute and they claim this in favour of the industry.
Of course, we would challenge them on this and ask does it not merely show that the more you bring the weight, power and wealth of institutions, organisations and clinics to the already unequal relationship, the greater the pressure brought to bear on a woman to reduce her agency to change her mind and force her to go through with it?
Indeed, there is clearly no incentive for the surrogacy industry who have a vested interest to bring the surrogacy to fruition for the commissioners. They are desperately seeking surrogates, indeed, part of why they wish to develop a paid for industry is because it is difficult to find UK women prepared to do this. Moreover, should anything go wrong, all responsibility can be passed off to the individual as their “choice, agency and autonomy.”
The law commission’s new proposal is that the potential surrogate mother and the commissioning parents enter into a pre-conception agreement which automatically assigns the child on birth to the commissioning parents. Similarly should there be a still birth, it will only be the commissioning parents’ names on the death certificate.
It is suggested that she have legal advice and counselling or screening beforehand which it is implied the commissioning couple would pay for – well certainly given the wealth disparity the woman herself often cannot pay for it, the national health cannot afford it but where is the independence, actual or perceived, of legal advice and counselling paid for by the surrogacy clinic or the commissioning parents!
The proposals continue – there will be no need to obtain a parental order after birth to effect this transfer and the commissioning parents need only sign to say they had “no reason to suppose” the surrogate mother was not consenting and that indeed they could dispense with consent altogether, including should the surrogate mother be temporarily incapacitated.
The Law Commission’s new proposal also suggests that the criteria by which a Court would decide in the case of a dispute would be “the best interest of the child” but a number of factors may help decide what is in the “best interest” and the intentions of all parties (as indicated in their pre-conception agreement) could be one such factor.
Going through it
As the surrogacy industry develops with commercial or “compensated” surrogacy and a range of clinics, providers, brokers, agents and lawyers around the process, practices such as live-in clinics, or prescribed and controlled diets, exercise and behaviours etc. can become a feature and may be extremely invasive and controlling.
In other cases, the process is entirely hands-off with little or no concern or support to the surrogate mother and leaving her high and dry if she is anxious, worried or things start to go wrong. The only concern being ensuring a healthy child is transferred to the commissioning parents. We have seen examples of couples refusing to take a child with physical or mental health problems. We have seen women implanted with multiple eggs and then required to abort some or having multiple foetuses with related short and long term harms to child and mother.
We also see, particularly with egg donors and gestational surrogacy, the tendency for racism to become embedded in the process with clinics and commissioning couples specifying what qualities, attributes and looks they want and price ranges reflecting this racial hierarchy. Many of these examples come from transnational surrogacies where the wealth disparity is even greater.
The Law commission appears to suggest that problems are really only a feature of transnational surrogacy which they are not promoting. However, the problems relate less to geography and more to wealth disparity – by promoting paid surrogacy and a paid for surrogacy industry in an increasingly unequal society, we would be very soon replicating all of these abuses.
Coming out of it
So, what happens if a woman changes her mind? Currently after birth there is a requirement to obtain a parental order to confirm that the child is being handed over. The new pathway seeks to replace this with a pre-conception agreement that automatically transfers the child on birth to the commissioning couple. Should the woman wish to change her mind, the onus is on her to lodge relevant papers within a five-week window after birth whereupon the court would be involved.
A woman, and possibly her partner, who had thought she or they would be handing over the baby and who find that she or they do not wish to do so may well be emotionally, financially and in every way unprepared to take the child home, they may be in shock, she may also be afraid that her partner, if she has one, will not stand by her, she is likely to be physically and emotionally exhausted and very stressed. She may feel guilty about letting down the commissioners, she may be worried about the upheaval in her own life, she may be worried about the money received and the cost of legal advice in any hearing, yet she may be desperate to keep and raise the child. It is hardly fair to expect her to organise and prepare for a confrontational, emotional and very high stakes court hearing in the first 5 weeks of birth while dealing with all this.
Funnily enough there is no mention of legal advice and counselling for her in this eventuality in the law commission’s proposals. In fact, the lack of parity of arms of the parties is stark.
If it comes to a Court hearing, how will the Court decide?
Currently in the UK, while payments made or agreement can be honoured, the handover of the child cannot necessarily be enforced but in a dispute the Court has to decide in the best interests of the child. The Law Commission consultation asked if both payments and the handover should be enforceable/actionable and found that agencies working in surrogacy did think both should be enforceable. Moreover, they also considered whether a woman refusing to hand over the child but having received/spent money could be pursued in law for “unlawful enrichment”. What do the best interests of the child mean in reality?
It means many things – who can give the child the best home, family, life chances and the best sense of its identity? Given the commissioning couple are usually substantially richer and have invested so much to try to have the child, there will be much in their favour.
If, as the law commission proposals suggest, this new pre-conception agreement assuming the child belongs to the commissioning parents is in place and can be relied on to show intention in court, then again this will go in the favour of the commissioning couple.
Who are fit and proper parents?
The courts are not free from the stereotypes, myths and prejudices of wider society. It is already the case that women are blamed, stigmatised, disbelieved and distrusted. Women who are prepared to sell themselves or their babies for money, as they may be painted in a court, would clearly be at a disadvantage against the commissioners.
As we have seen in the US, the degree of genetic link between the woman and the child is also deemed increasingly relevant. Those rare cases where the child is awarded to the surrogate mother or any degree of visiting or contact rights awarded to her, have been where the mother had a genetic link to the child. This has precisely led to the surrogacy industry advising against traditional surrogacy and promoting surrogacies which use a donor egg and donor sperm so that there is no genetic link with the mother and less chance of her acquiring any rights.
In conclusion, at every stage of surrogacy the odds are stacked against women who act as surrogates and these proposals exacerbate that risk and inequality. The scope for a partner’s abuse and coercion about even entering such an arrangement is already intense. The extent of poverty, inequality and desperation for some women can over-ride any concept of free and informed consent or choice. The fact that proposals wish to proactively market to individuals as young as 18 and to normalise and mainstream surrogacy, risks grooming and misleading young women into the process. The proposals to build a whole industry and sets of agreements and payments around surrogacy bring additional risks of serious abuses as well as increased inequality of power to bear on the already weaker party backed up with the additional weight of the courts not to mention the court of public opinion.
We do not merely oppose the proposals in this consultation We oppose the whole concept which exploits inequality of power, wealth and status, objectifies women, denies their personhood and uses their bodies merely to serve the preferences of others.